VENGOLI KESAVAN NAMBOODIRI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner filed a suit for partition and separate possession of his 1/3 share in the plaint properties including some private forests.The plaintiff in the first instance paid the fixed court -fee of Rs.100 on the ground that he is in joint possession of the Illom properties.However,he was directed to pay court -fee on the 1/3 market value of the private forests,the market value of which properties have been assessed at Rs.4,42,187.50.The court -fee payable by him accordingly came to Rs.33,164.25.Unable to pay the abovesaid court -fee he sought for and was allowed to continue the suit in forma pauperis .The suit was ultimately compromised whereby the plaintiff got a decree for 50 acres of private forests comprised in items 3 and 4 and another property,1 acre 51 cents of land and a building thereon.Ext.P -1 is the decree.That decree directed,as provided for in Order XXXIII,rule 10 of the Code of Civil Procedure,1908 that the court -fee payable by paintiff shall be recover­able by the Government and that the same shall be a first charge on the subject -matter of the suit.The decree is dated 15th March 1965.Admittedly the petitioner paid towards the aforesaid liability for court -fee,Rs.13,720 on 30th September 1965.The balance remaining payable by the petitioner is Rs.23,597.75.On 23rd August 1971 the 1st respondent published the Kerala Private Forests(Vesting and Assignment)Act,1971,which as per section 1(3)there­of was brought into force with retrospective effect from 10th May 1971.Under section 3 of that Act with effect from 10th May 1971,the ownership and possession of all private forests in the State were transferred to and vested in the Government free from all encumbrances,and the right,title and interest of the owner and other persons in them were extinguished.It is the submission on behalf of the petitioner that by reason of this provision the debt(liability for court -fee)itself has been wiped off pro tanto to the value of the property so vested.

(2.) THE learned counsel for the petitioner put forward his arguments in two forms,viz .,that there has been a merger of the charge and the full proprietary right less the charge in one and the same person,viz .,the 1st respondent,and that,therefore,there has been a wiping off of the debt for which the charge was created.In a slightly different form it was argued that section 3 of the Act could operate only on the petitioner's rights in the property,that is to say,his full ownership less the charge -rights of the 1st respondent which had earlier been created in favour of the 1st respondent as per Ext.P -1 decree in 1965.

(3.) IN my view the submission made on the basis of the above discussed principle and relying on the aforesaid decisions that there has been a protanto extinguishment of the charge liability is well -founded.